Rights group says civil penalties are sufficient to protect institution of marriage

The American Civil Liberties Union of Virginia has agreed to represent a Luray man who is being prosecuted for violating Virginia’s statute that criminalizes adultery. The ACLU maintains that Virginia’s civil laws allowing adultery to be a factor in divorce and custody cases are sufficient to protect the institution of marriage. Making adultery a crime, however, violates of the right of privacy articulated in the U.S. Supreme Court’s recent case striking down a Texas statute that criminalized sodomy between consenting adults.
“The Supreme Court made it clear in the Texas sodomy case that the government has no right to bring criminal charges against consenting adults for what they do in the privacy of their own bedrooms,” said ACLU of Virginia executive director Kent Willis. “There must be some places the government cannot go, and the bedroom of consenting adults is one of them.”
“This does not mean that the ACLU is condoning adultery,” added Willis. “But we think there is significant difference between a divorce proceeding that penalizes a husband or wife for adulterous behavior and the state charging an adulterer with a crime. Eliminating Virginia’s criminal adultery statute will have no effect whatsoever on domestic proceedings in which adultery is a factor.”
In a brief appearance yesterday before the Page County Circuit Court, ACLU of Virginia legal director Rebecca K. Glenberg and special prosecutor Glenn Williamson agreed to present oral arguments on April 9. Judge Herman Whisenant, Jr. of Manassas was appointed to hear the case after Page County Judge John J. McGrath recused himself.
“Private sexual conduct between consenting adults is a liberty protected by the Constitution,” said Glenberg. “Moral disapproval is not a sufficient reason to criminalize such conduct.”
Under Virginia law, adultery, defined as having sexual intercourse with anyone other than a spouse, is a class 4 misdemeanor and subject to a $250 fine.
The ACLU of Virginia is representing John R Bushey, Jr., the former Luray town attorney, who is charged with one count of adultery. Bushey pled guilty to violating Virginia’s adultery statute in General District Court, but reserved his right to challenge the constitutionally of the statute. The case is now on appeal in the Circuit Court.

Contacts: Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022 Rebecca K. Glenberg, Esq., Legal Director, ACLU of Virginia, 804-644-8022

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